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The Democratic Legitimacy of WTO Law - on the Dangers of Fast-Food Democracy Samantha Besson

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The Democratic Legitimacy of WTO Law - on the Dangers of Fast-Food Democracy Samantha Besson The Democratic Legitimacy of WTO Law - On the Dangers of Fast-food Democracy Samantha Besson To cite this version: Samantha Besson. The Democratic Legitimacy of WTO Law - On the Dangers of Fast-food Democ- racy. 2011. hal-02919045 HAL Id: hal-02919045 https://hal.archives-ouvertes.fr/hal-02919045 Submitted on 21 Aug 2020 HAL is a multi-disciplinary open access L’archive ouverte pluridisciplinaire HAL, est archive for the deposit and dissemination of sci- destinée au dépôt et à la diffusion de documents entific research documents, whether they are pub- scientifiques de niveau recherche, publiés ou non, lished or not. The documents may come from émanant des établissements d’enseignement et de teaching and research institutions in France or recherche français ou étrangers, des laboratoires abroad, or from public or private research centers. publics ou privés. Working Paper No 2011/72| December 2011 The Democratic Legitimacy of WTO Law – On the Dangers of Fast-food Democracy Samantha Besson* Abstract: For the last fifteen years or so, the democratic deficit of Word Trade Organization (WTO)’s law has been a recurrent and dominant concern among international economic lawyers and international relations specialists alike. The impact of those debates on the democratic deficit of the WTO has been surprisingly limited, however. This may be explained, the paper argues, by the way in which the debates have been conducted. To start with, recent discussions of the democratic legitimacy of WTO law have taken place in isolation of those pertaining to that of international law in general, as if it were possible to enhance the democratic legitimacy of the WTO regime without considering that of other international law regimes at the same time. Furthermore, discussions of the democratic legitimacy of WTO law focus almost exclusively on what can be done at the level of international institutions, without reference to domestic democratic processes that transpose and enforce WTO law, and how those subject to both WTO law and domestic law can participate in them. Finally, the way authors usually proceed is by identifying and isolating certain democratic building blocks within (domestic) democratic theory or practice which they then re-assemble in different ways and add to the WTO institutional structure, hoping thereby to ‘democratize’ WTO law- making. The problem with those approaches to what the paper calls ‘fast-food democracy’ is that they are oblivious to the most important element in democracy: its subjects. Those subjects are also subjects to other norms of international law and to other norms of domestic law whose legitimacy is therefore better approached as a whole, and it is by reference to their political equality that reforms of WTO law-making processes may be devised most successfully. NCCR TRADE WORKING PAPERS are preliminary documents posted on the NCCR Trade Regulation website (<www.nccr-trade.org>) and widely circulated to stimulate discussion and critical comment. These papers have not been formally edited. Citations should refer to a “NCCR Trade Working Paper”, with appropriate reference made to the author(s). Research for this paper was funded by the Swiss National Science Foundation under a grant to the National Centre of Competence in Research on Trade Regulation, based at the World Trade Institute of the University of Bern, Switzerland. *Professor of Public International Law and European Law and Co-director of the European Law Institute, University of Fribourg (Switzerland) and 2011-12 Fellow of the Wissenschaftskolleg zu Berlin (Germany). Many thanks to Thomas Cottier and Matthias Oesch for the invitation to contribute, to Feryel Kilani for her research assistance and to Eleonor Kleber for her help with the formal lay-out of the paper. Contact: [email protected]. The Democratic Legitimacy of WTO Law – On the Dangers of Fast-food Democracy Samantha Besson ‘For all the efforts of the WTO to overcome its failings, and these efforts […] have been substantial and well in advance of the other international economic institutions since the turn of the century, a democratic deficit remains.’ (Higgott and Erman, ‘Deliberative Global Governance’, 470) Introduction For the last fifteen years or so, the democratic deficit of the Word Trade Organization (WTO)’s law has been a recurrent and dominant concern among international economic lawyers and international relations specialists alike. In short, the legitimacy or justification of the authority of WTO law has been in question especially since the WTO became a source of binding international law norms, norms that impact on individual lives in almost all areas of domestic trade regulation and are enforceable by a compulsory and binding dispute settlement mechanism, without, however, corresponding equal and public inclusion of those affected in the decision-making process.1 In view of the corresponding loss in authority of the relevant domestic law and in particular of involvement of domestic parliaments, and hence of the deficit in domestic democratic legitimacy, it is the democratic legitimacy of WTO law that has been mostly questioned. The debate about the democratic deficit of the WTO is burgeoning and publications on the legitimacy of WTO law, and on its democratic legitimacy in particular, have become so numerous over the last few years that it proves difficult to keep track of them.2 However, despite repeated theoretical critiques of the democratic legitimacy of WTO law and practical efforts at reforming institutional structures and decision- making processes within the WTO,3 not much has changed overall.4 Of course, this may be explained by a certain degree of institutional stickiness and entropy, but also by conservative reactions and efficiency concerns following an unprecedented economic crisis.5 This is regrettable as it is precisely at times of deep recession and resurgent national sovereignty that democratic legitimacy is most needed. More importantly, I would like to argue that it is the way the debate has been conducted that may also explain the little impact those many publications have had on the institutional structure of WTO law- making. To start with, recent discussions of the democratic legitimacy of WTO law have taken place in 1 See Higgott and Erman, ‘Deliberative Global Governance’, 452-4. 2 See the list of references at the end of this research paper, and the bibliographical survey essay by Schneller, ‘Conceptions’. 3 For a useful account of the various efforts, see Howse, ‘The Legitimacy of the World Trade Organization’; Howse, ‘How to Begin’; Higgott and Erman, ‘Deliberative Global Governance’, 469. 4 See Elsig and Cottier, ‘Reforming the WTO’; Krajewski, ‘Zur Demokratisierung’, 220-4. 5 See e.g. Elsig and Cottier, ‘Reforming the WTO’, on the efficiency downsides of democratization for WTO member states. 3 isolation of those pertaining to that of international law in general, as if it were possible to enhance the democratic legitimacy of the WTO regime without considering that of other international law regimes at the same time. Furthermore, discussions of the democratic legitimacy of WTO law focus almost exclusively on what can be done at the level of international institutions,6 without reference to domestic democratic processes that transpose and enforce WTO law and how those subject to both WTO law and domestic law can participate in them. Finally, the way authors usually proceed is by identifying and isolating certain democratic building blocks within (domestic) democratic theory or practice which they then re-assemble in different ways and add to the WTO institutional structure, hoping thereby to ‘democratize’ WTO law-making.7 This piecemeal approach to democracy qua ensemble of separable features partakes arguably in the efficiency concern that prevails in WTO institutional reforms and that only allows for a modest tinkering with the institutional structure of the organization. The problem with those approaches to democracy on demand, and with what I will call ‘fast-food democracy’ in this paper by reference to a quick and structurally uncomplicated fix, is that they are oblivious to the most important element in democracy: its subjects. Those subjects are also subjects to other norms of international law and to other norms of domestic law whose legitimacy is therefore better approached as whole and it is by reference to their political equality that reforms of the law-making processes may be devised more successfully. In short, if the contours of WTO multi-level8 governance or authority9 have long been explored,10 it seems that the literature on the legitimacy or justification of that authority has not yet fully come to terms with its multi-level and multi-lateral11 dimensions and how the legitimacy of the law produced on those different levels necessarily co-evolves.12 In response to those concerns, I propose to address the democratic legitimacy of WTO law in a more integrated international and domestic fashion and the way to 6 When authors actually refer to the domestic level, they assume the international level remains untouched as if it were possible to handle one side of the equation without the other. See e.g. Keohane, Macedo and Moravcsik, ‘Democracy- Enhancing Multilateralism’ (in general); Elsig, ‘Democratizing Effect’ (in the WTO context). For an effort to encompass all levels at the same time, however, see e.g. Cottier, ‘Legitimacy of WTO Law’. 7 See e.g. Krajewski, ‘Legitimizing Global Economic Governance’; Bonzon, ‘Institutionalizing
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